# Petition for Writ of Certiorari — Mauro v. Arpaio

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1018

## Text

-ourt, U. Ss.
: 2

©

No. 99- OFFICE OF THE CLERK

v1 U1 5S DEC 151999

IN THE
Supreme Court of the United States

JONATHAN D. MAURO,

Petitioner,
Vv.

JOSEPH M. ARPAIO and MARICOPA COUNTY,

Respondents.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Of Counsel: THOMAS G. HENTOFF*
WILLIAMS & CONNOLLY

NICHOLAS S. HENTOFF 725 12th Street, N.W.

6601B Georgetown Pike Washington, D.C. 20005

McLean, Virginia 22101 (202) 434-5000

(703) 790-3370

* Counsel of Record Attorneys for Petitioner

ee emer
PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208

QUESTIONS PRESENTED

1. Do the First and Fourteenth Amendments permit a
county jail system to impose a total ban, with no exceptions
of any kind, on pretrial detainees possessing depictions of
frontal nudity—thus prohibiting and punishing the posses-
sion even of medical, educational, and artistic materials that
include nude figures?

2. Do the First and Fourteenth Amendments permit a
county jail system to impose a total ban on pretrial detain-
ees possessing depictions of frontal nudity without any indi-
vidualized consideration of inmates’ requests for materials
that contain such depictions?

li

TABLE OF CONTENTS
Page
QUESTIONS FRR basis Giticnrncciimons i
TABLE GP ARTES kiineststciccksanssrissccne Vv
OPINIONS AND ORDERS BELOW ....................... 1
CONSTITUTIONAL PROVISIONS
AND REGULATION INVOLVED ......................65 2
FURS TG vk cisinkcciccccbacaandes Gaccbeaae is ee as 2
STATE Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987).

* Black’s Law Dictionary 834 (6th ed.1990) (jail is “[a] place
of confinement that is more than a police station lockup and less than a
prison. It is usually used to hold persons either convicted of misde-
meanors (minor crimes) or persons awaiting trial or as a lockup for
intoxicated and disorderly persons.”).

* Black’s Law Dictionary 1194 (6th ed.1990) (“[t}he words
‘prison’ and ‘penitentiary’ are used synonymously to designate institu-
tions for the imprisonment of persons convicted of the more serious
crimes, as distinguished from reformatories and county or city jails.”).

25a

Street Jail have been convicted of the crimes for which they
are being held, although the county jail system as a whole
of course houses both pretrial detainees and persons con-
victed of crimes. The county can punish convicted inmates,
and can restrict First Amendment rights of pretrial detain-
ees tO maintain order in the jail, but it cannot punish pre-
trial detainees or take away First Amendment right of pre-
trial detainees to maintain uniformity with punishment rules
for convicted criminals in other facilities.

Although the majority concedes in footnote 1 that a
prison regulation cannot be adopted for the purpose of pun-
ishing and rehabilitating pretrial detainees, its application of
the “legitimate penological interest” test allows exactly that.
“Penological” means relating to the “theory and practice of
prison management and criminal rehabilitation.”° The
word is derived from the Greek and Latin words meaning
penalty or punishment, and still means roughly the same
thing.’ Turner, after formulating the test, expressly treats
rehabilitation as a legitimate penological interest in its
holding regarding a prohibition against inmate marriages.*

Our disagreement on which rule to apply has substan-
tial practical significance for this case, because there is evi-
dence that the reason why the jail prohibits Mauro from re-
ceiving Playboy is to punish him. Under Bell v. Wolfish,°
Mauro is entitled to defeat the restriction if he can show
either of two propositions to be true, an express intent to

* Am. Heritage Dictionary 918 (2d college ed. 1985).
7 Id.

® Turner v. Safley, 482 U.S. 78, 97-99, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987).

* Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d
447 (1979).

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punish, or a purpose of punishment that can be inferred
from excessiveness of the restriction in relation to the le-
gitimate purpose assigned to it:

A court must decide whether the disability is imposed
for the purpose of punishment or whether it is but an
incident of some other legitimate governmental pur-
pose. Absent a showing of an expressed intent to pun-
ish on the part of detention facility officials, that de-
termination generally will turn on whether an alterna-
tive purpose to which [the restriction] may rationally be
connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned
[to it}.’°

Thus the question for us is whether the record establishes a
genuine issue of fact on either of these two questions. If it
does, Mauro is entitled to try to prove his case."

'0 Bell, 441 U.S. at 538, 99 S.Ct. 1861 (internal citations and
quotations omitted).

'! The majority opinion argues that whether the policy at issue
was imposed for the purpose of punishing pretrial detainees “was not
raised by the parties in their briefs” so has been waived. Mauro’s brief
broadly challenges the constitutionality of the policy on all grounds.
The parties dispute the legitimacy of the purpose of the policy.
Mauro’s brief discusses the Penthouse interview with Sheriff Arpaio “in
which he stated that the purpose behind prohibiting sexually explicit
magazines was to ‘punish’ jail inmates.” The brief for the sheriff and
the county argues that the ban had three purposes, “eliminating work-
place discrimination” against female detention officers, “rehabilita-
tion,” and “to prevent fights among inmates.” The brief argues that
“rehabilitation of inmates is clearly a legitimate penological interest.”
The penological interest of rehabilitation is identical to that of punish-
ment, in that it is constitutionally limited to people who have been con-
victed of crimes. I therefore do not agree that the punishment aspect of
the case “was not raised by the parties in their briefs.”

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Mauro had evidence sufficient to establish an issue of
fact material to both Bell questions, though he only needed
evidence on one. First, he produced evidence of what Bell
phrases as “an expressed intent to punish on the part of de-
tention facility officials.”'* Sheriff Arpaio, who runs the
jail, said, in one of the exhibits submitted in opposition to
summary judgment, that his purpose in keeping sex maga-
zines out of the jail was to punish the prisoners:

I don’t think you should live better in jail than on the
outside.... They shouldn’t be country clubs. No Club
Fed in my jails. When you go to jail you should have
to give up certain things--smoking, coffee, adult maga-
zines, and R-rated movies. Jail means punishment. ...
This is my jail and they stay here until they’re con-
victed and sent to state prison.... Ive seen some of
them interviewed on national television, saying they’ll
sign plea agreements just to get out of my jail and be
sent to prison."°

It is hard to imagine better evidence that the purpose of
a restriction is punishment than the man who runs the jail
saying that his pretrial detainees “should have to give up ...
adult magazines” because “jail means punishment.” And
the sheriff uses careful and precise phrasing to make it clear
that he is talking about pretrial detainees, not convicted
criminals.

Arguably this quotation is not cognizable evidence un-
der Rule 56(c) and (e) because it may be inadmissible hear-
say. I cannot tell from the excerpts of record we have
whether that is so. Probably the statement is an admission

? Bell, 441 U.S. at 538, 99 S.Ct. 1861.

'? Exhibit E to plaintiff's motion for preliminary injunction,
Allan Sonnenschein, Sheriff Joe Arapaio, Penthouse, January, 1995, at
87, 134 (emphasis added).

28a

so not hearsay as to the defendant’s own words.’ But the
Statement may be inadmissible hearsay by the reporter who
purported to quote Sheriff Arpaio saying these words.” I
do not know whether Sheriff Arpaio has admitted the accu-
racy of the quotation,’® or whether a declaration by the re-
porter has been filed saying that the sheriff used these
words. The district judge did not reach the question. Ad-
missibility of this critical evidence ought to be ruled on in
the district court.

Even without the sheriff's admission, Mauro has estab-
lished a genuine issue of fact material to the second Bell
criterion, “whether an alternative purpose to which [the re-
striction] may rationally be connected is assignable for it,
and whether it appears excessive in relation to the alterna-
tive purpose assigned [to it].”'’ The Supreme Court did not
say “excessive in relation to the burdens of being in jail
generally” —for a jail inmate, being deprived of Playboy is
among the less substantial interferences with his liberty.
The excessiveness is to be measured in relation to the le-
gitimate purpose of maintaining order in the jail. If the re-
Striction is excessive in relation to that legitimate purpose,
that is evidence that it serves a punitive purpose, which is
not legitimate as to people not yet convicted of the crime
for which they are jailed.

The papers submitted on the summary judgment motion
would enable a jury to conclude that the prohibition of pub-
lications showing frontal nudity was excessive in relation to

“ Fed.R.Evid. 801(d)(2).
'S Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir.1991).

‘© Cf. Masson v. New Yorker Magazine, Inc., 85 F.3d 1394
(9th Cir. 1996).

” Beil, 441 U.S. at 538, 99 S.Ct. 1861.

29a

the purpose of maintaining order, and was adopted for other
purposes, including punishment and public relations. The
memorandum written by the deputy chief of the custody
bureau to the sheriff to justify the policy lists several pur-
poses other than and in addition to maintaining order.
Among them are that “morally we should not provide this
material to those people” (referring to people charged with
sex crimes), and “[fjederal law requires that if a female
employee makes a complaint regarding what she considers
obscene, that we as employers must ensure this material is
removed.” The memorandum also discusses the public re-
lations aspect of presenting the ban to reporters, noting that
“[t}he newspaper may bring up the fact that the Arizona
State Prison system allows both smoking and sexually ex-
plicit material to its prisoners.” The moral rehabilitation of
the prisoners must, of course, await their convictions.

As the majority opinion sets out, some prisoners did
disgusting things using sexually oriented magazines as
props, to harass female guards. So far as the record indi-
cates, the plaintiff never did. The harassment by other
prisoners does not establish that banning the magazines is
not excessive relative to the goal of maintaining order.
Every single one of the harassing actions by inmates was
plainly prohibited by the jail discipline code. The jail has
express rules against “engaging in sexual acts,” “making
sexual proposals or threats,” “indecent exposure,” “refus-
ing to obey direct orders from M.C.S.O. staff,” “assault on
employee,” “fighting,” and “conduct which disrupts secu-
rity or operation of institution,” among others. The penal-
ties are substantial-- typically disciplinary segregation, full
restriction, and reclassification. Indecent exposure, engag-
ing in sexual acts, making sexual proposals, are all subject
to restriction, unit segregation and other sanctions. These
sanctions can be imposed by means of a simple internal dis-
cipline procedure, without the burden of proving criminal
charges.

30a

Yet the jail banned the magazines and other materials
for everyone, instead of punishing the people who used
them as props with which the harass the guards. Though the
inmates could not be punished for the crimes with which
they were charged until they were convicted in court, they
could be punished for discipline violations after relatively
informal discipline proceedings in the jail. Punishment of
malefactors is the traditional means of preventing people
from misusing their liberties while leaving the liberties in-
tact for those who do not misuse them. One inmate whose
conduct was especially egregious was charged with a crime,
but so far as the record indicates, the jail discipline system
was never used to deal with the violative uses of sexual
magazines by prisoners.

The reason jail personnel gave for not using the disci-
pline system was that there were too many violations and
the jail stays were too short. That reason is necessarily
speculative where discipline proceedings charges were not
even attempted. Even though all the drivers on an ex-
pressway may be going twenty miles an hour over the speed
limit, it will probably not be necessary to ticket more than a
few to get the rest to slow down. Likewise for more seri-
ous offenses such as the prisoners’ disorderly use of sexual
magazines, punishment of a few may deter the rest. The
liberty at issue, a First Amendment liberty to read (and of
publishers to have access to readers'*) is a substantial one,
especially where it involves people whom the state holds as
prisoner but who have not yet been convicted of crimes.
Ironically, the prisoners could not read the Penthouse inter-
view of the sheriff because it appeared in a publication that
shows frontal nudity. It may be that trial would lead to a
finding of fact that, without evidence that the discipline

'® Thornburgh v. Abbott, 490 U.S. 401, 408, 109 S.Ct. 1874,
104 L.Ed.2d 459 (1989) (“publishers ... have a legitimate First
Amendment interest in access to prisoners”).

Ee PT at i

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system had been tried and failed, a total ban was excessive
relative to its legitimate purpose. (Or it might be that it
would not—the case could go either way on the evidence in
the record so far). There is enough here to allow the plain-
tiff to get the question to trial.

A related question on which there is a genuine issue of
fact is whether the ban works. If the ban on sexual maga-
zines is not a reasonably effective means for preventing in-
mates from fighting, harassing guards, and otherwise dis-
rupting the good order of the jail, then the ban is excessive
relative to that purpose. A ban on an exercise of a consti-
tutionally protected liberty, to serve a permissible purpose,
is excessive relative to that purpose if it does not effectively
serve it. The depositions indicate that inmate sexual har-
assment of female guards has continued, despite the ban on
sexual magazines, though some guards say it has declined.
The evidence that inmates use sexual magazines as props to
harass female guards, described in the majority opinion,
does not show that banning sexual magazines prevents in-
mates from sexually harassing female guards. Many of the
people who get thrown in jail are likely to act inappropri-
ately with or without sexually oriented magazines. And
considering that most people in jail are young males, they
are likely to have sexual thoughts about their guards, if the
jail uses female guards. Because the jail uses female guards
for male prisoners, and because inmates in jail must give up
their privacy in order to facilitate security, the female
guards are going to see the prisoners doing things that are
ordinarily not done in front of people of the opposite sex,
or in front of anyone at all. A trial could go either way on
whether the ban on publications, pictures from wives and
girlfriends, and other material showing frontal nudity,
serves the purpose of maintaining order in the jail or is ex-
cessive relative to that purpose because of ineffectiveness.

32a

We have not reached the question whether publications
showing frontal nudity may be kept from pretrial detainees
in jail because of jail administrator’s concerns that
“[flederal law requires that if a female employee makes a
complaint regarding what she considers obscene, that we as
employers must ensure this material is removed.” Defen-
dants argue in their brief that preventing “hostile environ-
ment” in a workplace is a “compelling” government inter-
est that justifies a ban on possession of sexually oriented
speech. This rationale, of course, is not limited to jails.’
The argument would justify a government ban on posses-
sion of publications showing frontal nudity in any work-
place, whether they are displayed to anyone or not. I am
not so sure that the Supreme Court decisions allowing
limitations on the rights of pretrial detainees to preserve
order in the jail include this radical extension of sexual har-
assment law. The guards’ workplace is the inmates’ resi-
dence, and it is an unanswered question that would benefit
from development of a record whether unconvicted indi-
viduals in pretrial custody must give up their liberty to read
what they like in order to accommodate the guards’ interest
in the absence of sexually offensive material at their work-
place. It is one thing for the jail to ban offensive sexual
displays that may drive some women from the workplace,
and another to ban receipt and possession even without dis-
play. The ban here is on receipt of publications, pictures of
wives and girlfriends, and other materials that include
frontal nudity, not on display of those items to guards or
other improper use of them. The harassing displays and
improper uses are prohibited by the discipline rules. That
possession of these publications may offend does not justify
banning them. “The States, acting as guardians of public

'* See generally, Eugene Volokh, Freedom of Speech and Ap-
pellate Review in Workplace Harassment Cases, 90 Northwestern Univ.
L.Rev. 1009 (1996).

33a

morality” may not prohibit speech merely on the basis that
it is offensive.” The harassment, as opposed to the of-
fense, is caused by display of the magazines in a purposely
harassing manner, but the regulation at issue goes to their
receipt and possession even by those who do not engage in
such conduct, such as the plaintiff.

As I said earlier, my speculation, as yet unsupported by
facts because there has been no trial, is that the majority
will turn out to be right in its result. Jails can be rough
places, and need some blunt tools to make the prisoners be-
have themselves while they are there. The jail may well be
able to show that nearly all the items showing frontal nudity
that come in are sex magazines and photographs of wives
and girlfriends, and that the inmates fight and otherwise
disrupt the good order of the jail if these are allowed in, no
matter what the jail tries to do about discipline. On the
other hand, the majority may be wrong. The evidence
might establish that the purpose of the ban on frontal nudity
pictures is to punish the prisoners and rehabilitate them, as
is proved by express declarations or excessiveness relative
to the goal of preserving order in the jail. A trial is a good
way to find out. Arizona has to convict these people before
it is entitled to punish and rehabilitate them. We must not
follow the Red Queen’s injunction, “sentence first--verdict
afterward. ””!

*® Cohen v. California, 403 U.S. 15, 22-23, 91 S.Ct. 1780, 29
L.Ed.2d 284 (1971).

*" Lewis Carroll, Alice’s Adventures in Wonderland 146 (Ran-
dom House 1946).

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APPENDIX B

Jonathan D. MAURO, Plaintiff-Appellant,
v.

Joseph M. ARPAIO, Sheriff; Maricopa County,
a political subdivision of the State of Arizona,
Defendants-Appellees,

Arizona Civil Liberties Union, Intervenor.
No. 97-16021.
United States Court of Appeals,
Ninth Circuit.
Dec. 2, 1998.
Prior report: 147 F.3d 1137
ORDER

Upon the vote of a majority of nonrecused regular ac-
tive judges of this court, it is ordered that this case be re-
heard by the en banc court pursuant to Circuit Rule 35-3.
The three-judge panel opinion, Mauro v. Arpaio, No.
97-16021, slip op. at 10013 (9th Cir. Sept. 1, 1998), is
withdrawn.

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APPENDIX C

Jonathan D. MAURO, Plaintiff-Appellant,
v.
Joseph M. ARPAIO, Sheriff: Maricopa County,
a political subdivision of the State of Arizona,
Defendants-Appellees.

Arizona Civil Liberties Union, Intervenor.
No. 97-16021.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 17, 1998.
Decided July 2, 1998.
As Amended Sept. 1, 1998.

Nicholas S$. Hentoff, Phoenix, Arizona, for plaintiff-
appellant.

Daniel P. Struck, Jones, Skelton & Hochuli, Phoenix,
Arizona, for defendants- appellees.

Appeal from the United States District Court for the
District of Arizona; Robert C. Broomfield, District Judge,
Presiding. D.C. No. CV-95-02729-RCB.

Before: FLETCHER, D.W. NELSON and BEEZER,
Circuit Judges.

FLETCHER, Circuit Judge:

Jonathan Mauro appeals the district court’s dismissal of
his 42 U.S.C. s 1983 claim. The district court held that the
Maricopa County prison system’s policy prohibiting in-
mates from possessing “sexually explicit” materials does
not violate the First Amendment. The County defines
“sexually explicit” material as that containing any graphic

36a

representation of frontal nudity. The district court held that
the policy was constitutional both as applied to Mauro’s re-
quest for Playboy magazine and as applied to the receipt of
any pictorial representations of frontal nudity. We have
jurisdiction, 28 U.S.C. s 1291, and we reverse, holding
that the policy is unconstitutionally overbroad.

I.

In August 1993 Maricopa County adopted a policy
prohibiting inmates from possessing “sexually explicit”
materials. Appellant Jonathan Mauro, a pretrial detainee,
sought to receive a subscription to Playboy while housed at
one of Maricopa’s prisons and was prevented from doing
so.

The policy defines sexually explicit materials as “per-
sonal photographs, drawings, and magazines and pictorials
that show frontal nudity.” If a prisoner is found in posses-
sion of such items, they are confiscated and the prisoner is
“written up” in a Disciplinary Action Report. The “mail
officer” has the responsibility for determining whether a
particular piece of incoming mail contains sexually explicit
material. The position is rotated among detention staff.
Thus, different persons on different days will determine
whether a particular piece of mail will be withheld.

Maricopa County asserts that its policy was prompted
by three considerations: safety, rehabilitation of inmates,
and reduction of sexual harassment of female prison per-
sonnel. The County produced testimonial evidence that
banning sexually explicit materials was necessary to achieve
these goals. Affidavits or depositions were submitted from
a number of female prison guards; from Larry Wendt,
Deputy Chief of the Maricopa Custody Bureau; and from
Joseph Arpaio, Sheriff of Maricopa County. In addition,
defendants answered written interrogatories and submitted
internal prison memoranda regarding the policy. Female

eee

37a

guards noted that such materials were used to intimidate
and harass them. The Deputy Chief stated that sexually
explicit materials caused “a higher incident [sic] of in-
mate/officers assaults” and “hurt jail security.” A written
explanation of the regulation stated that the regulation was
guided in part by a desire to insure rehabilitation since a
substantial percentage of inmates have been convicted of
sexual offenses.

After discovery, both parties moved for summary
judgment. Mauro had claimed that the policy violated his
rights under several provisions of both the United States
and Arizona Constitutions, but both parties stipulated that
his federal First Amendment claim would be dispositive.
Addressing only the First Amendment issue, the district
court granted summary judgment in the County’s favor,
holding that the policy, though broad, was reasonably re-
lated to legitimate penological interests. The district court
assessed the regulation both as it applied to Playboy and as
it applied to any depiction of frontal nudity.

II.

We review de novo a grant of summary judgment.
Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.),
cert. denied, U.S. ___, 118 S.Ct. 559, 139 L.Ed.2d
401 (1997).

Mauro asserts that the regulation in question is uncon-
stitutional as applied to his Playboy subscription and as ap-
plied to all materials that depict frontal nudity. The County
avers that: (i) its policy does not concern materials pro-
tected by the First Amendment; (ii) Mauro cannot bring a
facial challenge to the regulation, and (iii) even if Mauro
could bring a facial challenge, the regulation is constitu-
tional as applied to Playboy and as applied to any material
depicting frontal nudity.

38a

A.

The regulation concerns more than just obscene materi-
als, and thus purports to regulate material that is protected
fully by the First Amendment. See Reno v. American Civil
Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 2347, 138
L.Ed.2d 874 (1997) (holding that sexual expression that is
“indecent” is protected by the First Amendment); BSA, Inc.
v. King County, 804 F.2d 1104, 1107 (9th Cir.1986)
(holding that nudity alone ts not enough to make material
legally obscene).

Defendants assert that it is “doubtful” that the materials
banned by its regulation even qualify as protected speech
since the materials banned by the regulation “act as dis-
criminatory conduct in the form of a hostile work environ-
ment.” The County relies on Roberts v. U.S. Jaycees, 468
U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), in
which the Supreme Court held that where “potentially ex-
pressive activities ... produce special harms distinct from
their communicative impact, such practices are entitled to
no constitutional protection.” Jd. at 628, 104 S.Ct. 3244.
The Court noted, for example, that an act of violence that
has an expressive component is not protected by the First
Amendment merely because the act has that expressive
component.

In Roberts, the Court upheld the application of a Min-
nesota statute prohibiting gender discrimination in places of
public accommodation to the practices of the Jaycees. Club
members, who adopted a policy that women could join their
organization but could not vote on club matters, claimed
that Minnesota’s anti-discrimination statute violated their
right to associate. The Supreme Court rejected that argu-
ment, holding that Minnesota could regulate the specialized
harms that flowed from such discriminatory conduct, even
if members’ rights to associate were impinged in the proc-
ess.

Ana ie eS yr Raa re

39a

We disagree that Roberts should be applied to cases,
like the instant case, that involve pure speech. The County
has pointed to no case and we have found none in which
any court has applied this “special harms” theory beyond
the facts of Roberts or the cases that involve regulation of
violent behavior. Roberts has been cited exclusively in
cases with very similar facts, i.e., where the rights of social
club members to associate with each other run afoul of anti-
discrimination laws. We decline Maricopa’s invitation to
expand the application of Roberts.

B.

Defendants next contend that Mauro is limited to chal-
lenging the regulation as it applies only to Playboy since
Mauro conceded at deposition that he has tried only to re-
ceive a subscription to Playboy while in jail and his admin-
istrative grievance to jail authorities concerned only his
Playboy subscription. Mauro may challenge the regulation
as it relates to other materials only if he has standing to
bring a facial overbreadth challenge to the regulation.

A facial overbreadth challenge may be brought to pro-
tect the First Amendment rights of those not before the
court. The County correctly notes that the Supreme Court
has held that “facial overbreadth adjudication is an excep-
tion to ... traditional rules of practice.” Broadrick v. Okla-
homa, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830
(1973). Broadrick describes a number of situations in
which facial challenges are or are not appropriate. For ex-
ample, a facial challenge is not appropriate when a plaintiff
challenges an “ordinary criminal law.” Jd. at 613, 93 S.Ct.
2908. Also, when a statute regulates conduct that some-
times contains elements of expression, an overbreadth
Challenge is appropriate only when the overbreadth of a
Statute is real and substantial. Jd. at 615, 93 S.Ci. 2908;
see also United States v. Stansell, 847 F.2d 609, 613 (9th
Cir.1988) (holding that “if a statute covers both conduct

40a

and speech ... the Supreme Court requires that ‘the over-
breadth of a statute must not only be real, but substantial as
well’ “ (emphasis added)). On the other hand, facial chal-
lenges are particularly appropriate where a statute regulates
“only spoken words,” implicates the right of association, or
acts as a prior restraint. Broadrick, 413 U.S. at 612- 13,
93 S.Ct. 2908.

Maricopa County urges us to apply Broadrick to deny
standing to Mauro to bring a facial challenge because
Mauro has not shown that the regulation is substantially
overbroad. The County contends that given the reality of
prison life, it is “unlikely” that prisoners would request the
type of art magazines and other materials that Mauro sug-
gests would be banned by the regulation. First, we disagree
that the regulation is not substantially overbroad. A wide
variety of magazines and materials contain some frontal nu-
dity, and pursuant to the regulation, inmates would be pre-
vented from having any photograph, drawing or graphic
that depicted frontal nudity. As noted by Mauro, this
would include such magazines as National Geographic,
medical journals, artistic works, and countless other materi-
als. Second, although this is not a classic prior restraint
case, as the regulation operates, inmates are prevented from
receiving any materials that contain nudity, even those that
cannot be legally withheld. If an overbreadth challenge is
not allowed, inmates will be forced to endure an unending
series of legal challenges to determine whether the regula-
tion imposes a ban, piece of mail by piece of mail, while
their First Amendment rights are put on hold. This is not a
case in which the possibility is remote that parties not be-
fore the court would be punished for expressive conduct
that is protected by the First Amendment. See, e.g., Regan
v. Time, Inc., 468 U.S. 641, 650-51, 104 S.Ct. 3262, 82
L.Ed.2d 487 (1984) (noting that an overbreadth challenge
was inappropriate where there existed a remote possibility
that a statute would be applied to persons who were engag-

4la

ing in protected activity). Rather, this is a case in which
materials will be withheld as a matter of course, forcing the
inmates to bear the burden of uncertainty until more cases
are litigated. We conclude that Mauro has standing to bring
a facial challenge.

Cc.

Prisoners do not lose their constitutional rights merely
because they are incarcerated, although such freedoms are
limited necessarily by the context of their surroundings.
See Procunier v. Martinez, 416 U.S. 396, 409-13, 94 S.Ct.
1800, 40 L.Ed.2d 224 (1974). In Turner v. Safley, 482
U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Su-
preme Court held that, “when a prison regulation impinges
on inmates’ constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests.”
Id. at 89, 107 S.Ct. 2254. The Court recognized that while
“[p]rison walls do not form a barrier separating prison in-
mates from the protections of the Constitution,” federal
courts are “ ‘ill equipped to deal with the increasingly ur-
gent problems of prison administration.’” Jd. at 84, 107
S.Ct. 2254 (citing Procunier, 416 U.S. at 405-06, 94 S.Ct.
1800). The Court held further that there are four factors to
be considered in assessing the reasonableness of a regula-
tion: (i) whether there is a “valid, rational connection” be-
tween the regulation and the government interest put forth
as justification and whether the purported interest is neutral;
(ii) the extent to which alternative means of expression re-
main open to prisoners; (iii) what impact accommodation of
the inmates’ rights would have on guards, other inmates,
and allocation of prison resources; and, (iv) the absence or
presence of ready alternatives. Jd. at 89-90, 107 S.Ct.
2254 (internal quotations omitted).

There were two regulations at issue in Turner. The
first prohibited inmates from exchanging correspondence
with each other. The Court upheld that regulation, holding

42a

that it was reasonably related to prison safety. The second
prohibited an inmate from marrying without permission of
the superintendent of the prison.’ The Court struck the lat-
ter regulation, holding that it “swept much too broadly than
can be explained by petitioners’ penological interests,” and
that there were easy alternatives that would accommodate
an inmate’s right to marry while protecting prison security.
Id. at 98, 107 S.Ct. 2254.

Two years after Zurner was decided, the Supreme
Court reviewed a prison regulation that prohibited prisoners
from receiving certain sexually explicit materials, i.e.,
those containing images of homosexuality, sado-masochism,
bestiality, and sexual situations involving children. Thorn-
burgh v. Abbott, 490 U.S. 401, 405 n. 6, 109 S.Ct. 1874,
104 L.Ed.2d 459 (1989). In upholding the regulation, the
Court held that prison regulations prohibiting inmates from
receiving certain publications must be analyzed under the
Turner reasonableness standard, and that the regulation sat-
isfied the test. Jd. at 413, 109 S.Ct. 1874.

Regardless of whether the County’s policy would be
constitutional if applied to ban Playboy magazine, it is not
constitutional to ban all depictions of frontal nudity. There
is no appropriate “limiting construction” that may be ap-
plied to save the constitutionality of the regulation. Ac-
cordingly, we hold that it must be struck as a whole.

l.

The first Turner factor combines several inquiries. The
government must establish that its justifications are legiti-
mate and neutral and that there is a rational connection be-

' Prison officials claimed that “love triangles” might lead to
violent confrontations among inmates and that female inmates would
often be better off if they were not involved in abusive marital relation-
ships. /d. at 97, 107 S.Ct. 2254.

43a

tween the regulation and the justifications for that regula-
tion.

Maricopa County claims three interests: safety, reha-
bilitation of inmates, and reduction of sexual harassment.
Both the Supreme Court and this court have held that safety
and rehabilitation are legitimate penological interests. See
Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995) (citing
Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800,
40 L.Ed.2d 224 (1974)). Although no court has addressed
whether reducing sexual harassment of prison guards is a
legitimate penological interest, there should be no doubt
that protecting the safety of guards in general is a legitimate
interest, and that reducing sexual harassment in particular
likewise is legitimate. See, e.g., Folkerson v. Circus Cir-
cus Enters., Inc., 107 F.3d 754, 756 (9th Cir.1997) (hold-
ing that employer may be liable for failing to prevent sexual
harassment of employee by co-workers and by private indi-
viduals, such as business patrons). We find Maricopa
County's interests to be legitimate.

Neutrality has a specific meaning within the context of
prison regulations. Neutrality means that:

the regulation or practice must further an important or
substantial interest unrelated to the suppression of ex-
pression. Where ... prison administrators draw dis-
tinctions between publications solely on the basis of
their potential implications for prison security, the
regulations are ‘neutral’ in the technical sense in which
we meant and used that term in Turner.

Thornburgh, 490 U.S. at 415-16, 109 S.Ct. 1874 (internal
quotations and citations omitted); see also Giano v. Sen-
kowski, 54 F.3d 1050, 1055 (2d Cir.1995) (holding that
“even content-based First Amendment restrictions have
been treated as neutral if their sole purpose is to maintain
prison security amd decrease violence among inmates”);

44a

Dawson v. Scurr, 986 F.2d 257, 261 (8th Cir.1993) (hold-
ing that prison regulations which “distinguish between pub-
lications on the basis of their potential implications for
prison security and rehabilitation ... are ‘neutral’ “).

Here, the regulation purports to distinguish among in-
coming mail and publications based upon the materials’
potential effect on prison safety, not based upon a certain
message contained within that material. See, e.g., Harper
v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989) (holding
that regulation could not ban materials for “merely advo-
cating homosexual activity,” but could ban those materials
where they are shown to impact prison security). There is
no evidence to the contrary. This is all that is required to
meet the Turner neutrality test.

In demonstrating that a regulation is rationally related
to a legitimate goal, prison officials need not prove that the
banned material actually caused problems in the past, or
that the materials are “likely” to cause problems in the fu-
ture so long as there is an “intolerable risk” of violence.
See Thornburgh, 490 U.S. at 417, 109 S.Ct. 1874 (so
holding); Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir.1993)
(holding that the court needs no proof that the banned mate-
rials had ever been the cause of violence in the past);
Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989)
(holding that prison need not demonstrate proof of actual
danger). Rather, prison officials may anticipate problems
and adopt regulations to forestall them. Casey, 4 F.3d at
1521 (citing Turner, 482 U.S. at 89, 107 S.Ct. 2254).

On the other hand, courts have not allowed prison offi-
cials to enact broad and far-reaching bans simply because
safety or other legitimate interests were purported concerns.
For example, as noted previously, the Court in 7Jurner
struck a prison regulation that prevented inmates from mar-
rying “civilians.” The Court noted, “the rule sweeps much
more broadly than can be explained by petitioners’ pe-

45a

nological interests.” Turner, 482 U.S. at 98, 107 S.Ct.
2254. The Court was concerned that prison officials’ stated
rationale was inconsistent with previous policy and not well
supported by their own testimony. For example, there had
been a long tradition of allowing such marriages, the rule
had been unevenly enforced as applied to male and female
inmates, and prison officials themselves had testified that
they generally had no problem with inmate-civilian mar-
riages. Id. at 99, 107 S.Ct. 2254.

In McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987), this
court struck in part a prison regulation which prevented
prisoners from receiving materials from the Church Jesus
Christ Christian (CJCC). We held that while it was rational
for the prison to ban those CJCC materials which specifi-
cally advocated violence, the prison could not ban CJCC
materials which merely advocated racism, notwithstanding
the prison’s contention that racist materials are inflamma-
tory and can lead to violence. Jd. at 638. Some years
later, in Stefanow v. McFadden, 103 F.3d 1466 (9th
Cir.1996), assessing similar literature, we held that a ban is
appropriate only when the material is “reasonably likely” to
incite violence. Jd. at 1473. In that case, we held that the
book, Christianities Ancient Enemy, could be banned from
the prison because it specifically advocated violence.

While the County presented evidence that magazines
such as Playboy had been used in the past to harass female
guards,’ it offers no evidence of past incidents of violence
or harassment where other materials depicting nudity were
involved. Further, the sole evidence put forth of any po-
tential for future danger was Deputy Chief Wendt’s state-

? Female guards stated, for example, that prisoners would hold
up such magazines and make anatomical comparisons between them and
the persons depicted in the magazines.

46a

ment that it was his opinion that any material depicting nu-
dity could be the focus of violence.

Although prison officials’ opinions regarding security
threats are owed deference, see Wallingford, 877 F.2d at
733, we question whether all materials depicting nudity are
“reasonably likely” to be the cause of violence or a tool of
harassment absent proof or reasoned explanation that this
will result. The deposition of Wendt is the only evidence
that Maricopa County offers to this effect, and Wendt offers
no rationale for his supposition. After establishing that a
photograph of a nude Christ painted by Michelangelo would
be banned by Maricopa County’s policy, Mauro’s attorney
asked Wendt the following:

Q. Do you believe that this photograph would in any
way--the possession of this photograph would in any
way impact upon jail security?

A. Yes, I do.
Q. Why?

A. There is a possibility that if in one cell you had an
inmate or in the same cell you had an inmate who was
an atheist and you had another inmate that was a devout
Christian, and the atheist said something to the effect
that look at the size of the genitals on Jesus Christ, that
could incite a fight between the inmates.

Q. All right. Inmates can fight almost over anything,
correct?

A. Correct.

Q. I mean, a picture of a clothed Christ could incite a
riot, or incite a fight between two inmates?

A. It could.

47a

Q. All right. But yet you don’t ban a picture of a
clothed Christ, do you?

A. I don’t think it has the potion that a picture like this
does.

Other than Wendt’s testimony, Maricopa County
merely states that the possibility that “inmates will misbe-
have when using materials depicting frontal nudity is clearly
a reasonable possibility to which deference toward the poli-
cies of jail officials is required.” The County offered no
expert testimony, see, e.g., Wallingford, 877 F.2d at 733
(discussing affidavit of prison psychiatrist), nor even a
“reasoned” explanation to support its theories, see, e.g.,
Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir.1993). At the
Same time, it imposed a prohibition that went far beyond
any sanctioned by this court, or any other.’ The County
has not carried its burden to show that such a far reaching
prohibition is “reasonably related” to legitimate penological
interests. It offers no proof or reasoned explanation.

2.

The second Turner factor concerns whether a regula-
tion leaves open alternative means of expressing the right
upon which the regulation impinges. See Thornburgh, 490

* Narrow prohibitions on certain types of materials have been
upheld. See, e.g., Thornburgh, 490 U.S. at 405 n. 6, 109 S.Ct. 1874
(banning sexually explicit materials involving homosexuality, sado-
masochism, bestiality, and children); Wallingford, 877 F.2d at 729
(banning material from the Man/Boy Love Association promoting sex
with children); Giano, 54 F.3d at 1052 (banning nude or semi-nude
photographs of inmates’ wives or girlfriends); Dawson, 986 F.2d at 259
n. 2 (banning images of bestiality, sado-masochism, child nudity, and
homosexuality).

Maricopa has defined “sexually explicit” as any depiction of
frontal nudity. Were the County to define it differently or more nar-
rowly, we would have a different case.

48a

U.S. at 418, 109 S.Ct. 1874. The County’s broad regula-
tion fails this alternative means analysis.

The Supreme Court in Thornburgh provided useful
guidance as to the application of this prong of the Turner
test. In Thornburgh, the prison regulation prohibited any
publication that was deemed by the warden to be “detri-
mental to the security, good order, or discipline of the in-
stitution or ... [that] might facilitate criminal activity.” 490
U.S. at 416, 109 S.Ct. 1874. While the Court held that the
alternative means test was satisfied because inmates retained
access to “a broad range of publications,” id. at 418, 109
S.Ct. 1874, the Court noted that the broader the regulation,
the more likely that the regulation will violate the alterna-
tive means test. Jd. at 417 n. 15, 109 S.Ct. 1874. The
Court was “comforted” by the fact that “the regulations ex-
pressly rejected certain shortcuts,” such as the creation of
an excluded list of publications, or the delegation of the
task of making an issue by issue determination to someone
other than the warden himself. Jd. at 417, 109 S.Ct. 1874.
The Court noted that although this might mean that the
regulation would at times be applied inconsistently, “[a]ny
attempt to achieve greater consistency by broader exclu-
sions might itself run afoul of the second Turner factor.”
Id. at 417 n. 15, 109 S.Ct. 1874.

The regulation here forbids any depiction of nudity.
There is no issue by issue determination of whether a par-
ticular depiction of nudity might cause the unwanted conse-
quences the prison seeks to avoid, nor does the warden
have a nondelegable duty to make such an individualized
determination. The blanket prohibition unnecessarily pre-
cludes prisoners’ access to materials fully protected by the
First Amendment. The County has not sought to ban a
small subset of materials containing obscene of otherwise
objectionable nudity while leaving open other means of
viewing similar materials. See, e.g., Giano, 54 F.3d at

49a

1056 (upholding the constitutionality of a prison regulation
prohibiting the possession of nude or semi-nude photo-
graphs of loved ones because “commercially produced
erotica and sexually graphic written notes from wives or
girlfriends are adequate substitutes”); Dawson, 986 F.2d at
261 (upholding a regulation that banned certain sexually
explicit material, such as child pornography, but that al-
lowed inmates to “keep many sexually explicit materials in
their cells”). Rather, in direct contradiction of the Supreme
Court’s cautionary language in Thornburgh, Maricopa
County has enacted a regulation that sweeps too broadly,
indiscriminately eliminating large categories of materials
without individualized consideration.

3.

The third factor weighs an inmate’s request that his
right be accommodated against the asserted impact that ac-
commodating that right will have on other inmates and
prison guards. See Thornburgh, 490 U.S. at 418, 109
S.Ct. 1874; Turner, 482 U.S. at 90, 107 S.Ct. 2254 (hold-
ing that “[iJn the necessarily closed environment of the cor-
rectional institution, few changes will have no ramifications
on the liberty of others or on the use of the prison’s limited
resources for preserving institutional order”). Maricopa
County has failed to address this issue except to insist that
allowing inmates access to any depiction of frontal nudity
would have a negative impact on jail security. We have
rejected this broad claim, and in any event, have no need to
address this factor, finding that the regulation fails to meet
other prongs of the Turner test.

4.

The availability of “obvious, easy” alternatives that
could be implemented at a “de minimis” cost weigh against
the reasonableness of a regulation. Turner, 482 U.S. at 93,
107 S.Ct. 2254. Mauro does not allege to this court that

50a

there are readily available alternative means of allowing
him to view the materials he seeks to view. We have no
ability nor need, then, to evaluate this prong of the 7urner
test.

Il.

Because we find that the regulation is overbroad, we
must determine whether we can narrow the regulation in
such a way as to insure its constitutionality. See Broadrick,
413 U.S. at 613, 93 S.Ct. 2908 (“Facial overbreadth has
not been invoked when a limiting construction has been or
could be placed on a challenged statute.”); BSA, Inc. v.
King County, 804 F.2d 1104, 1110 (9th Cir.1986) (holding
that “the court must determine whether there is a ‘readily
apparent construction ... for rehabilitating the statute’” (ci-
tation omitted)).

Neither party has suggested an appropriate limiting
construction, and we find that none exists. Maricopa has
banned all depictions of frontal nudity. Such a broad re-
striction is not subject to an appropriate limiting construc-
tion and this court has neither the ability nor the power to
fashion an entirely new regulation. See Reno v. American
Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 2351,
138 L.Ed.2d 874 (1997) (holding that courts shall not “re-
write” laws to insure conformance with constitutional re-
quirements, particularly in the absence of clear legislative
intent indicating where “a new line or lines should be
drawn,” even where a severability clause exists). Further,
plain and unambiguous regulations, such as the one in this
case, are not susceptible to limiting constructions. See City
of Houston v. Hill, 482 U.S. 451, 468, 107 S.Ct. 2502, 96
L.Ed.2d 398 (1987). As the Maricopa County prison
regulation is overbroad and not subject to an appropriate
limiting construction, we must strike it as a whole.

Sla

IV.

Maricopa County’s policy impinges upon the right of
inmates to receive material protected by the First Amend-
ment. It is overbroad and as such is unconstitutional. We
REVERSE the district court and remand for proceedings
not inconsistent with this decision. Mauro’s request for
reasonable attorney’s fees pursuant to 42 U.S.C. § 1988(b),
is granted. Defendant’s request for costs pursuant to Fed.
R.App. P. 39 is denied.

REVERSED and REMANDED.

52a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

JOHNATHAN D. MAURO,
Plaintiff,

VS. No. CIV 95-2729
MARICOPA COUNTY, a
political subdivision of the State
of Arizona; JOSEPH M. ARPAIO,
both individually and in his
official capacity as Maricopa
County Sheriff,

Defendants.

ORDER

Nm Nee ee”

Plaintiff Jonathan Mauro alleges that Defendants’ pol-
icy of prohibiting inmates’ possession of sexually explicit
materials in Maricopa County jails violated the First
Amendment, the Due Process and Equal Protection Clauses
of the Fourteenth Amendment, and various provisions of
the Arizona State Constitution. The court now considers
Defendants’ motion for summary judgment and Plaintiff's
cross-motion for summary judgment.

I. FACTUAL BACKGROUND

On August 19, 1993, Defendants issued a policy that
prohibited the possession of sexually explicit materials by
inmates within the Maricopa County jail system (the “Pol-
icy”). The Policy defined sexually explicit materials as
“materials that show frontal nudity.” Under the Policy,
sexually explicit materials would be confiscated as contra-
band and destroyed, and the inmate would be written up on
a disciplinary action report. Moreover, a mail officer had
the responsibility of determining whether or not a particular

53a

item was “sexually explicit,” and the mail officer position
was a rotating responsibility among detention staff.

Defendants contend that the Policy was instituted for
three reasons: (1) to prevent fights and disturbances by in-
mates who used the sexually explicit material to barter for
“goods” and by inmates who drew anatomical comparisons
between the materia! and the girlfriends or wives of other
inmates; (2) to prevent the sexual harassment of female de-
tention officers by inmates who used the sexually explicit
materials to threaten, abuse, and intimidate female officers;
and (3) to rehabilitate inmates detained on charges of sex-
ual assault, sexual abuse, child molestation or sexual mis-
conduct.

As to the second reason, Defendants contend that, prior
to the adoption of the policy, several female detention offi-
cers had made complaints about the inmates’ possession and

use of sexually explicit materials. Inmates would make
anatomical comparisons between the sexually explicit pho-
tos and the female detention officers.’ In other cases, in-
mates who possessed sexually explicit magazines would tell
female officers that they wanted to perform sexual acts on
them and would masturbate in front of the female officers.’
Defendants content that this type of sexual harassment of
female guards by inmates occurred repeatedly on a daily
basis. But, after the institution of the Policy, Defendants

' In the one instance, an inmate held the sexually explicit
magazine to the female guard and asked, “What do you think of her?
Doesn’t she have great breasts? I bet you look that good naked.”
Other remarks by inmates possessing sexually explicit materials in-
cluded: “How do you like the tits on this one?” and “How do you like
the shaved beaver on this one?”

> One particular inmate, while masturbating in his cell, told a
female detention officer that he was “fucking Miss July up the ass right
now and, when I’m done, I’m going to fuck you up the ass.”

54a

allege that the number of incidents of sexual harassment and
the number of fights between inmates have dramatically de-
creased.

Plaintiff Mauro is a pre-trial detainee housed in the
Madison Street Jail awaiting trial on charges of fraudulent
schemes and artifices. Mauro alleges that he has been in-
jured by enforcement of the Policy when he could not ob-
tain a subscription to Playboy magazine on October, 1993.
Raising the following arguments, Mauro challenges the
constitutionality of the Policy under the First Amendment:

(1) the mail officer in any given day has unbridled dis-
cretion to exclude a particular magazine, since the Policy
does not provide any guidelines for determining whether a
material is “sexually explicit;”

(2) the Policy is overbroad, since it would exclude
materials that contain frontal nudity, even though the mate-
rials do no contribute to prison violence or the sexual har-
assment of female detention officers;

(3) the Defendants’ stated interest in preventing sexual
harassment is not true, since female detention officers are
“desensitized” to sexual harassment by inmates; and

(4) there are other less restrictive alternatives than the
Policy to preventing fights between inmates or their sexual
harassment of female guards.

Both Defendants and Plaintiff have filed a motion for
summary judgment. Neither party addresses Plaintiff’s
Equal Protection and Due Process claims under the Four-
teenth Amendment and his claims under the Arizona State
Constitution. However, at the hearing on the motions the
parties indicated that the court’s ruling on their motions
would be case dispositive.

55a

II. DISCUSSION

A. STANDARD OF REVIEW

Summary judgment is appropriate where no genuine
issue of exists as to any material fact and where the moving
party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). In determining whether to grant summary
judgment, the court will view the facts and inferences in the
light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574,
577 (1986).

However, the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment. The
requirement is that there be no genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986). A “material fact” is any factual dispute that
might affect the outcome of the case under the governing
substantive law. Id. at 248. A factual dispute is “genuine”
if the evidence is such that a reasonable jury could resolve
the dispute in favor of the nonmoving party. Jd.

A nonmoving party cannot rest upon allegations or de-
nials in the pleadings or papers. Jd. at 250. Instead, the
nonmoving party must set forth specific facts showing that
there is a genuine issue for trial. Jd. Affidavits establish-
ing such facts must be based on personal knowledge and
admissible evidence. Fed. R. Civ. P. 56(c). Moreover, if
the nonmoving party’s evidence is merely colorable or is
not significantly probative, a court may grant summary
judgment. Jd. at 249-50 (“the mere existence of a scintilla
of evidence in support of plaintiff’s position will be insuffi-
cient”).

56a
B. First Amendment Challenge to the Policy
:. First nt Protec xuall
Explicit Materi

As a threshold issue, the court must first determine
whether a policy denying access to non-obscene sexually
explicit materials impinges on the First Amendment. De-
fendants argue that “sexually explicit photographs do not
even qualify as protected speech under the First Amend-
ment.”’ The court disagrees. The Supreme Court has ex-
pressly stated that non-obscene sexually explicit materials
are protected by the First Amendment. See United States v.
X-Citement Video, Inc., 115 S. Ct. 464, 469 (1994) (age of
minority of performers for purposes of child pornography
charge was elemental fact to which scienter requirement of
the child pornography statute would be applied, in light of
First Amendment protection of non-obscene, sexually ex-
plicit material involving performers over age 17). The
Ninth Circuit has also held that First Amendment protection
extends to such materials. See BSA, Inc. v. King County
804 F.2d 1104, 1107 (9th Cir. 1986) (prohibition of a cate-
gory of protected expression, including that which is sexu-
ally explicit, can be upheld only where it furthers a sub-
stantial governmental interest unrelated to suppression of
free expression, and where governmental interest could not
be served by a means less intrusive on First Amendment
activity).

Even the cases Defendants cite make clear that sexually
explicit non-obscene materials are protected by the First
Amendment. In Barnes v. Glen Theatres, Inc., 501 U.S.

> Defendants also argue that sexually explicit photographs “act
as discriminatory conduct in the form of a hostile work environment.”
To the extent Defendants characterize the Policy as regulating conduct,
the court disagrees. The Policy prohibits sexually explicit materials,
not sexual harassment.

57a

560 (1991), the Supreme Court found that nude dancing
was expressive conduct protected by the First Amendment.
In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986), the Supreme Court impliedly found that adult mov-
ies were protected by the First Amendment when they
evaluated a zoning ordinance, which restricted the location
of adult movie theaters, under the content-neutral time,
place and manner test, a test applied to regulations restrict-
ing protected expression.

Therefore, the policy denying access to sexually ex-
plicit materials does raise First Amendment concerns.‘

i First Amendment Rights of Prisoners

Prison walls are not a barrier separating inmates from
the protections of the Constitution. Thornburgh v. Abbott,
490 U.S. 401, 407 (1989). However, the fact of confine-
ment and the needs of the penal institution impose limita-
tions on constitutional rights, including those derived from
the First Amendment. Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 124 (1977). Moreover,
the Supreme Court has counseled judicial restraint in the
federal courts’ review of prison policy, noting that “courts
are ill equipped to deal with increasingly urgent problems
of prison administration and reform.” Turner v. Safley,
482 U.S. 78, 82 (1987).

Accordingly, prison regulations, particularly regula-
tions affecting the sending of a publication to a prisoner,
are analyzed under a reasonableness standard. Jd. at 89;
Thornburgh, 490 U.S. 413. Such a deferential standard is
necessary if “prison administrators ... and not the courts

* Defendants also argue that the Policy would survive constitu-
tional scrutiny even if it was instituted in a non-prison setting. Since
the Policy was instituted in a prison setting, the court will not engage in
the hypothetical posed by Defendants.

58a

[are] to make the difficult judgments concerning institu-
tional operations.” Turner, 482 U.S. at 89 (quoting North
Carolina Prisoners’ Labor Union, Inc., 433 U.S. at 128)
(internal quotations omitted).

a. Turner and Thornburgh analysis

Under this standard, the court considers four factors:
(1) whether the governmental objective underlying the
regulation at issue is legitimate and neutral, and whether the
regulation is rationally related to the objective; (2) whether
there are alternative means of exercising the right that re-
main open to prison inmates; (3) the impact that accommo-
dation of the asserted constitutional right will have on oth-
ers (e.g. guards and inmates) in the prison and on the allo-
cation of prison resources generally; and (4) whether there
exists obvious easy alternatives which fully accommodate
the prisoner’s rights at de minimis cost to valid penological
interests. Zurner, 482 U.S. at 89-91.

(1) Rationally related to neutral,
legitimate interests

As to the legitimacy of their interests, Defendants con-
tend that the Policy was enacted to prevent fights among
inmates, to prevent the sexual harassment of female deten-
tion officers by inmates,’ and to assist in the rehabilitation

* Plaintiff argues that Defendants’ interest in preventing sexual
harassment is not legitimate, since the prison is a hostile environment
for anyone, and since female detention officers are “desensitized” to
sexual harassment by inmates. In support of his argument, Plaintiff
cites to Detention Officer Joyce Brown’s deposition.

The court doubts that the prison setting is not more hostile to
female detention officers who are subjected to sexual slurs from inmates
than to male detention officers who are not. Moreover, even if one
female detention officer has become desensitized to inmates’ harass-
ment, this does not mean that other female guards are not entitled to a
workplace free from the type of sexual harassment fostered by sexually
explicit materials.

59a

of sexual offenders. The first two interests relate to prison
security, and the Supreme Court has held that prison secu-
rity is a legitimate, and indeed compelling, penological in-
terest. Thornburgh, 490 U.S. at 415. Moreover, the Ninth
Circuit has held that the rehabilitation of inmates is a le-
gitimate interest.° Harper v. Wallingford, 877 F.2d 728,
732 (9th Cir. 1989).

As to neutrality, the Supreme Court has held that a
regulation was “neutral” if it furthers an important or sub-
stantial government interest “unrelated to the suppression of
expression.” Thornburgh, 490 U.S. at 415. Prison secu-
rity and the rehabilitation of inmates are interests unrelated
to the suppression of expression.’ See Thornburgh, 490

° Defendants’ evidence supporting their asserted interests in
preventing prison fights and fostering the rehabilitation of sexual of-
fenders is sparse. Other than the testimony of Larry Wendt, Deputy
Chief of the Custody Bureau, the record does not contain any other
evidence of how sexually explicit materials contribute to prison fights
and detract from the rehabilitation of sex offenders.

However, since the Supreme Court has mandated that courts
afford considerable deference to the determinations of prison adminis-
trators who, in the interest of security, regulate the relations between
prisoners and the outside world, this court will accept as true Defen-
dants’ above asserted interests. Thornburgh, 490 U.S. at 407-408. See
also Harper, 877 F.2d at 732, (the Ninth Circuit accepted as true de-
fendants’ claim that materials advocating consensual sex between adult
and juvenile males would threaten prison security based solely on a
superintendent’s affidavit that such materials could lead to violence).

” Citing Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), and
Thompson v. Patterson, 985 F.2d 202 (Sth Cir. 1993), Plaintiff argues
that the Policy is content-based. In Pepperling, the Ninth Circuit held
that prison officials cannot prevent inmates from receiving magazines
solely on the basis that they are “sexually explicit.” However, the
Ninth Circuit also explicitly stated that it would “not challenge the
authority of prison officials to censor specific portions of any magazines
.-. Sent to a prisoner, provided that censorship is based upon a determi-
nation that the prisoner’s receipt of the publication will have an adverse
impact on either the prisoner’s rehabilitation or prison security.” 678

60a

U.S. at 415-16 (where prison administrators draw distinc-
tions between publications solely on the basis of their po-
tential implications for prison security, the regulations are
“neutral”); Harper, 877 F.2d at 733 (content regulations
are permissible in the prison context if the excluded materi-
als pose a threat of violence, a security threat to the prison,
or a threat to another legitimate penological interest like the
rehabilitation of inmates).

Finally, the court finds that the Policy is rationally re-
lated to serving these legitimate and neutral interests. A
regulation is not rationally related where “the logical con-
nection between the regulation and the asserted goal is so
remote as to render the policy arbitrary or irrational.”
Turner, 482 U.S. at 89-90. Here, the logical connection
between excluding sexually explicit materials and prevent-
ing problems associated with such materials is not so re-
mote as to render the Policy arbitrary or irrational.

Plaintiff argues that the Policy is not rationally related
to Defendants’ asserted interests, since it would ban artistic
or scientific magazines. Plaintiff argues that the Policy

F.2d at 791. (emphasis added). Here, Defendants have excluded sex-
ually explicit materials not because of their content, but because they
adversely affect the safety and security of other inmates and prison
staff.

In Thompson, the Fifth Circuit upheld a regulation which ex-
cluded publications containing depictions of homosexuality, sado-
masochism, bestiality, incest or sex with children. The regulation indi-
cated that publications will not be excluded solely because they have a
sexual content. 985 F.2d at 204. Again, the court notes that Defen-
dants in this case did not exclude sexually explicit materials because of
their sexual content; rather, they excluded such materials because the
materials resulted in fights between inmates and in their sexual harass-
ment of female detention officers by inmates. Moreover, Defendants
did not exclude all communications with sexual content; in fact, under
the Policy, inmates may continue to read sexually explicit articles, nov-
els or letters.

6la

bans all materials with “frontal nudity” without regard to
whether the materials resulted in fights between inmates, in
the sexual harassment of female officers by inmates, or had
an adverse impact of prisoners’ rehabilitation.

However, the court finds that it is not “so remote” a
possibility for prisoners to barter nude photographs or
drawings in artistic and scientific magazines, to use such
photographs to draw anatomical comparisons with wives or
girlfriends or other inmates, and to use such photos to
sexually harass female detention officers. In fact, the court
‘finds no marked distinction between Plaintiff's Exhibit 1,
depicting a live nude female model on the cover of an art
magazine, and a photograph of a nude female model in

Playboy.

Admittedly, all of Defendants’ evidence has dealt with
the link between magazines like Playboy and security or
rehabilitation problems, as opposed to the link between
magazines like Art & Auction or National Geographic and
these problems. However, the “rationally related” test does
not require extensive factual proof of the link between the
regulation and the government’s interests. Giano v. Sen-
kowski, 54 F.3d 1050, 1055 (2d Cir. 1995) (making the
“common sense determination” that nude photos of wives
or girlfriends were highiy emotionally charged and often
lead to violent altercations among prisoners). Moreover,
the “rationally related” test does not require an exact link
between the excluded materials and government interests.
Thornburgh, 490 U.S. at 410 (rejecting the least restrictive
analysis as applied to prison regulations).

Plaintiff argues that the Policy is more restrictive than
the regulation in Thornburgh which the Supreme Court had
found to meet the “rationally related” test.* The court

* In Thornburgh, the Supreme Court upheld a regulation ban-
ning sexually explicit materials which by their nature pose a threat to

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agrees. Under the regulation in Thornburgh, Plaintiff's
Playboy magazine would probably have been banned.
However, the fact that the Policy is more restrictive that the
regulation in Thornburgh does not end the constitutional
inquiry.

In Turner, the Supreme Court indicated that the Con-
stitution “does not mandate a ‘lowest common denominator’
security standard, whereby a practice permitted at one penal
institution must be permitted to all institutions.” 482 U.S.
at 93 n. 1. Accordingly, the regulation in Thornburgh is
not the lowest constitutional denominator by which all other
prison regulations must be judged. Moreover, while the
regulation in Thornburgh was aimed at preventing prison
violence, here, the Policy is aimed at preventing both sex-
ual harassment and prison violence. Publications which
may not contribute to prison violence could conceivably
contribute to sexual harassment.

Therefore, the Policy is rationally related to legitimate
and neutral interests.

(2) Alternative means of exercising
right

In determining whether Plaintiff has an alternative
means of exercising his right, “the right” in question must
be viewed sensibly and expansively. Thornburgh, 490 U.S.
at 417. In Turner, the Supreme Court upheld a prison
regulation which prohibited inmates in one prison from
communicating with inmates in other prisons; the Court did
not require that prisoners be afforded alternative means of

security. 490 U.S. at 405. The regulation in Thornburgh defined
sexually explicit materials to include materials which depicted homo-
sexuality, bestiality, sado-masochism, and sexual acts involving chil-
dren. /d. at 405 n.6. Also, the regulation allowed explicit heterosexual
material and any explicit material which has “scholarly, or general so-
cial or literary value.” Jd.

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communicating with inmates at other institutions in order
for the “alternative means” factor to be met. 482 U.S. at
92. Rather, the court merely required that other means of
expression remain available, such as inmate communication
with non-inmates. Jd. See also Harper v. Wallingford, 877
F.2d 728, 733 (9th. Cir. 1989) (finding that a regulation
which prohibited publications espousing consensual sexual
relationships between adult males and juvenile males met
the “alternative avenues” factor, even though prisoners had
no access to similar materials).

Here, the “right” in question is the right to receive
sexually explicit communications, and alternative avenues
exist for Plaintiff to exercise this right. Although the Pol-
icy bans all sexually explicit publications, it does not ban
sexually explicit letters between inmates and loved ones nor
does it ban photographs of clothed females or sexually ex-
plicit articles. Moreover, to the extent Plaintiff argues that
the Policy infringes on his right to read written articles
contained within “sexually explicit” magazines, he remains
free to read similar articles from different sources. To the
extent Playboy or Penthouse contains “acclaimed fiction,
insightful interviews [and] first-rate investigative report-
ing,” and not to the extent Plaintiff reads Playboy or Pent-
house for these articles, he may find equally acclaimed, in-
sightful, and first-rate articles in other magazines.” There-
fore, the court finds that Plaintiff has alternative avenues of
exercising his First Amendment right.

(3) Impact of Accommodation

In determining the impact of accommodating Plaintiff's
First Amendment right, the court considers whether ac-

* Defendants also point out that Plaintiff may continue to read
written articles contained in sexually explicit magazines by directing his
subscription to the house of a family member or friend and having that
person in turn forward copies of the non-sexual articles to him in jail.

64a

commodation of this right will have an impact on guards,
other inmates, and on the allocation of prison resources.'°
When accommodation of an asserted right will have a sig-
nificant “ripple effect” on fellow inmates or on prison staff,
courts should be “particularly deferential to the informed
discretion of correction officials.” Turner, 482 U.S. at 90.
Moreover, where the asserted constitutional right can be
exercised only at the cost of significantly less liberty and
safety for everyone else, the court should defer to the in-
formed discretion of corrections officials. Thornburgh, 490
U.S. at 418.

Here, allowing Plaintiff and other inmates to possess |
sexually explicit materials would create a “significant ripple
effect” on other inmates and on prison staff, since the bar-
tering of sexually explicit materials may lead to fights be-
tween inmates, since such fights would jeopardize the safety
of staff members who had to intervene as well as the in-
mates involved, and since sexually explicit materials have
contributed to the sexual harassment of female officers.
Also, the exercise of Plaintiff's First Amendment right
would have a significant impact on prison resources, since
detention officers would have to discipline inmates whose
use of sexually explicit materials threatened prison security,
and since Maricopa County could potentially be liable for

‘© In Thornburgh, the Supreme Court noted that incoming
publications would generally have a significant impact on the prison .
facility:

“Once in the prison, material of this kind reasonably may be
expected to circulate among prisoners, with the concomitant potential |
for coordinated disruptive conduct. Furthermore, prisoners may ob- |
serve particular material in the possession of a fellow prisoner, draw |
inferences about their fellow’s beliefs, sexual orientation, or gang af-
filiations from that material and cause disorder by acting accordingly ...

The problem is not ... in the individual reading the materials in most
cases. The problem is in the material getting into the prison ...” 490
U.S. at 412-13 (internal citations and quotations omitted).

65a

sexual harassment suits from its female detention officers."
Finally, the exercise of Plaintiff's First Amendment right
would be at the cost of less liberty and safety for other in-
mates and for prison staff, especially female detention
Officers.

(4) Obvious Easy Alternatives

The existence of obvious easy alternatives may be evi-
dence that a regulation is not reasonable. Turner, 482 U.S.
at 90-91. An alternative is “obvious” and “easy” if it
“fully accommodates the prisoner’s rights at a de minimis
cost to valid penological interests.” Jd. Moreover, the Su-
preme Court has considered the “administrative inconven-
ience” of the proposed alternative in determining whether it
is “obvious” and “easy.” Thornburgh, 490 U.S. at 419.
This factor does not impose a “least restrictive alternative”
test; that is, prison officials do not have to “set up and then
shoot down every conceivable alternative method of ac-
commodating the claimant’s constitutional complaint.” Jd.

Relying on Dawson v. Scurr, 986 F.2d 257 (8th Cir.
1993), cert. denied, 510 U.S. 884 (1993), Plaintiff has sug-
gested two alternatives: (1) a reading room for inmates to
view sexually explicit materials; and (2) psychological
testing of inmates who would be “fit” to receive sexually

" As Defendants point out, courts have found the existence of
a hostile work environment where pictures of nude women and sexual
slurs abound. See EEOC Compliance Manual §614, { 3114 (C) (1) at
3274 (1990). See also Robinson v. Jacksonville Shipyards, Inc., 760 F.
Supp. 1486 (M.D. Fla. 1991); Sanchez v. City of Miami Beach, 720 F.
Supp. 974, 977 (S.D. Fla. 1989). Moreover, 29 C.F.R. §1604.11(e)
provides that an “employer may ... be responsible for the acts of non-
employees, with respect to sexual harassment of employees in the
workplace, where the employer (or its agents or supervisory employees)
knows or should have known of the conduct and fails to take immediate
and appropriate corrective action.”

66a

explicit materials.’ The court finds that both alternatives
would impose more than a “de minimis cost” on valid pe-
nological interests.

Even if sexually explicit materials were confined to a
reading room, there is no evidence that prisoners would not
continue to sexually harass female detention officers.
Moreover, as Defendants point out, female detention offi-
cers, who transported inmates to and from the reading room
and who monitored the reading room, would be especially
vulnerable to sexual harassment. Finally, the creation of a
reading room would certainly be greater than a “de minimis
cost;” indeed, it would be administratively burdensome be-
cause of the requirement which would be placed on deten-
tion officers to escort inmates from different custody levels
to and from the reading room, to strip search the inmates

'? Defendants also address two other alternatives that the
Plaintiff could have raised: (1) separating sexually explicit photo-
graphs from “award-winning” articles contained in magazines like
Playboy or Penthouse, and (2) imposing disciplinary sanctions on in-
mates who barter sexually explicit materials and who sexually harass
female detention officers.

As to the first alternative, Defendants note that the Supreme
Court in Thornburgh upheld the district court’s determination that re-
quiring prison officials to tear out the rejected portions of a publication
and to admit the rest of the publication would be administratively in-
convenient and thus not a “de minimis cost.”

As to the second alternative, Defendants argue that individual
sanctions would not solve the problems faced by Defendants since:
(1) inmates charged with serious felonies are rarely influenced to be-
have when threatened with sanctions or “write-ups”; and (2) the secu-
rity and harassment problems created by sexually explicit materials
were widespread and frequent and could not easily be eliminated
through a case-by-case sanction on a specific inmate.

Based on Defendants’ arguments, the court agrees that both
alternatives cited above would not be “obvious” or “easy.”

67a

once they leave the reading room, and to monitor the read-
ing room."

The psychological testing of inmates also exacts more
than a de minimis cost on Defendants’ interests. In Daw-
son, the psychological testing of inmates was intended to
prevent sexual offenders from receiving sexually explicit
materials which would have adversely affected their reha-
bilitation. 986 F.2d at 260. Psychological testing in this
case would not serve the Defendants’ other asserted inter-
ests in preventing inmate fights and sexual harassment. Cf.
Friend v. Kolodzieckzak, 923 F.2d 126, 128 (9th Cir. 1991)
(inmates’ proposed alternative was inadequate where it sat-
isfied some, but not all, of the prison officials’ concerns).

Finally, the court reiterates that a prison policy found
to be constitutional in one setting does not mean that a more
restrictive policy in a different prison setting would be

'’ Deputy Chief Wendt’s affidavit states:

6. .. . [the reading room] is incompatible within the current
design structure of the MCSO jails, where inmates are housed
at different levels and units according to detailed classification
criteria. Simply transporting inmates (from all custody levels)
to a central reading room would be a logistical nightmare.
Additionally, the current rooms used for attorney and family
visitation are already over capacity. To accept Plaintiff's pro-
posal would require the County to spend funds to build an en-
tirely new room or unit with budgetary funds it does not have
in its possession and on vacant space that it does not own.

7. The proposal would also impose an administrative burden
on detention officers who would be required to transport in-
mates to and from the room, as well as the inconvenience of
the strip-searching of every inmate before they may enter the
room. We (MCSO command staff) simply do not have the
manpower to provide this extra service for inmates. Even as-
suming only one percent (1%) of the approximately 6,500
MCSO inmates would want to use the room on a weekly basis,
MCSO wold have to escort sixty-five inmates every week to
this central reading room. We do not have time or the avail-
able staff to accommodate this service.

68a

equally constitutional. This is so, because prisons may
have different security concerns due to their available re-
sources and due to the nature and size of their prison popu-
lation. As Defendants note, the lowa Board of Corrections
policy in Dawson applies to a prison facility housing 450
prisoners for an extended period of time. By contrast, the
Maricopa County jail system houses 6,000 inmates, and
most of the inmates stay for only a short period of time (14
days).

Therefore, under Turner and Thornburgh, the Policy is
constitutional.

b. Standardless discretion

However, the constitutionality of the Policy under
Turner and Thornburgh does not end the constitutional in-
quiry. The court must still determine whether the Policy
confers standardless discretion to detention officers.

A speech regulation that delegates overly broad discre-
tion to a government official is unconstitutional under the
First Amendment. The Supreme Court has repeatedly
struck down statutes that have vested officials with a dan-
gerously wide and unfettered degree of discretion to regu-
late speech. See, e.g., Shuttlesworth v. City of Birming-
ham, 394 U.S. 147 (1969) (invalidating ordinance requiring
marchers to seek permission from town mayor); Cox v.
Louisiana, 379 U.S. 536 (1965) (striking down standardless
breach-of-the-peace statute); Kunz v. New York, 340 U.S.
290 (1951) (invalidating ordinance prohibiting public wor-
ship without a permit from city police commissioner); Saia
v. New York 334 U.S. 558 (1948) (invalidating ordinance
requiring sound trucks to obtain permission from police
chief).

Here, the Policy does not confer standardless discretion
to mail officers. It clearly defines “sexually explicit mate-
rials” as materials depicting “frontal nudity.” Whether a

BR aa a ke tic

69a

material depicts frontal nudity is an objective test, not a
subjective one.'* Certainly, the Policy in this case con-
ferred less discretion on detention officers than the regula-
tion in Thornburgh which allowed the warden to exclude
materials “detrimental to the security, good order, or disci-
pline of the institution or ... might facilitate criminal activ-
ity.” Thornburgh, 490 U.S. at 416.

Therefore, the Policy is constitutional under the First
Amendment.

IT IS ORDERED granting Defendants’ motion for par-
tial summary judgment as to the First Amendment claim
(doc. 47).

‘4 In his statement of facts, Plaintiff notes how different deten-
tion officers could interpret the Policy differently. During her deposi-
tion, Detention Officer Joyce Brown testified that she would let some
publications containing frontal nudity into the jail (e.g., National Geo-
graphic), because of her subjective determinations regarding the nature
and content of the publication. By contrast, another detention officer,
Detention Officer Lois McLaughlin, testified during her deposition that
she would have excluded the identical material.

However, the Supreme Court has indicated that such inconsis-
tent results do not necessarily raise First Amendment concerns:

“The exercise of discretion called for by these regulations may
produce seeming ‘inconsistencies,’ but what may appear to be
inconsistent results are not necessarily signs of arbitrariness or
irrationality. Given the likely variability within and between
institutions over time, greater consistency might be attainable
only at the cost of a more broadly restrictive rule against ad-
mission of incoming publications ... Any attempt to achieve
greater consistency by broader exclusions might itself run afoul
of the second Turner factor, i.e., the presence or absence of
‘alternative means of exercising the right’ in question ...”.

Thornburgh, 490 U.S. at 417 n.15 (internal citations omitted).

70a

partial summary judgment as to the First Amendment claim

|
IT IS ORDERED denying Plaintiff's cross-motion for
(doc 54).

|

Tla

APPENDIX E

CONSTITUTIONAL PROVISIONS
(Excerpts)

The First Amendment to the United States Constitution
provides in pertinent part:

Congress shall make no law . . . abridging the

freedom of speech... .

The Fourteenth Amendment to the United States Con-
stitution provides in pertinent part:

Section 1 . . . . No State shall make or enforce
any law which shall abridge the privileges or im-
munities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal pro-
tection of the laws.

72a

APPENDIX F

MARICOPA COUNTY SHERIFF’S OFFICE
INMATE NOTIFICATION (Aug. 6, 1993)

EFFECTIVE IMMEDIATELY, sexually explicit ma-
terial is no longer permitted within this jail. This in-
cludes sexually explicit publications as well as photo-
graphs.

All of this material must be disposed of by no later
than August 19, 1993. You may eliminate these items
from your possession in the following ways:

1. Release items to a visitor during a visit.

2. Mail the items to someone on the outside, at
your Own expense.

3. Voluntarily dispose of the items by throwing
them in the trash container in your housing
unit.

4. If you are unable to dispose of the items by
using the above three (3) means, you may re-
quest, by use of an Inmate Request Form, that
your items be placed in temporary safekeeping.

After August 19, 1993, if you are found in possession
of sexually explicit materials the items will be confis-
cated and destroyed. You will also be written up on a
Disciplinary Action Report.

NOTE: Inmates who have subscriptions to these
types of publications are to ca

73a

APPENDIX G

MARICOPA COUNTY SHERIFF'S OFFICE
CLARIFICATION ON ISSUE OF
SEXUALLY EXPLICIT MATERIALS
(Aug. 6, 1993)

The purpose of this memorandum is to clarify a few
issues regarding the possession of sexually explicit
material by inmates within the jail system.

Sexually explicit materials are materials that show
frontal nudity. Inmates can no longer possess per-
sonal photographs, drawings, and magazines and pic-
torials that show frontal nudity. To ensure that these
items are removed from the facilities in an orderly
manner, the following actions are to be taken:

e The inmates will be given ten (10) days in
which to remove these items from their cells.
(Inmate notification attached.) This may be
accomplished in the following ways:

1. Release items to a visitor during a visit.

tJ

. Mail the items to someone on the outside, at
the inmate’s expense.

3. Voluntarily disposing of the items by
throwing them in the trash containers in the
cell blocks.

4. If the inmate is unable to eliminate the items
by using the above three means, he may re-

74a

quest that we place his items into temporary
safekeeping in Property and Evidence.

e If, after ten (10) days, inmates are found to be
in possession of sexually explicit materials,
these items will be confiscated as Administra-
tive Contraband, and destroyed. The inmate
will also be written up on a Disciplinary Action
Report.

e Sexually explicit materials that are mailed to
the inmates after August 19, 1993 will be re-
turned to sender as UNAUTHORIZED MAIL.

NOTE: Inmates that have subscriptions to
these types of publications are to be
advised to cancel their subscriptions
with the publishers.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0572%3A1. Public record. Not legal advice.